A tor­tu­ous start for Jus­tice

The depart­ment’s foun­da­tions were re­luc­tantly laid 147 years ago

The Washington Times Daily - - OPINION - By Thomas V. DiBacco By Michael D. Evans Thomas V. DiBacco is pro­fes­sor emer­i­tus at Amer­i­can Univer­sity.

If you think the Depart­ment of Jus­tice is grab­bing the head­lines these days, on June 22, 1870, the news was even big­ger. Congress seem­ingly reme­died the fed­eral gov­ern­ment’s le­gal short­com­ings that day when it cre­ated the depart­ment. To be sure, there had al­ways been an at­tor­ney gen­eral since 1789, the first year of Pres­i­dent Ge­orge Wash­ing­ton’s ad­min­is­tra­tion when the Ju­di­ciary Act was passed. But the of­fice­holder was al­ways a part-timer.

The first at­tor­ney gen­eral, Ed­mund Ran­dolph, was a close per­sonal friend of Wash­ing­ton and con­tin­ued his pri­vate law prac­tice as well. He lamented:

“I am a sort of mon­grel be­tween the State and the U.S.; called an of­fi­cer of some rank un­der the lat­ter, and yet thrust out to get a liveli­hood in the for­mer — per­haps in a petty mayor’s or county court ... . Could I have fore­seen it, [the role] would have kept me at home to en­counter pe­cu­niary dif­fi­cul­ties there, rather than add to them here.”

Ran­dolph’s main job was to pro­vide le­gal ad­vice to the pres­i­dent as well as Congress and to deal with turf wars among Cab­i­net mem­bers, es­pe­cially Secretary of State Thomas Jefferson and Secretary of the Trea­sury Alexan­der Hamil­ton.

But the dilemma in terms of the of­fice was its lack of ad­min­is­tra­tive author­ity. In 1819, for in­stance, the at­tor­ney gen­eral pro­vided ad­vice just to Congress — with the pres­i­dent left out of the loop — and fed­eral dis­trict at­tor­neys were re­ally un­der the con­trol of the Trea­sury Depart­ment, which used them in roles akin to IRS agents to­day, namely, col­lect­ing money. Even the of­fice of the at­tor­ney gen­eral was lodged in the Trea­sury Depart­ment. And some­times the real le­gal ma­neu­ver­ing was done not by the at­tor­ney gen­eral, but by the pow­er­ful secretary of Trea­sury, as in 1830, when ef­forts, largely un­suc­cess­ful, were made to elim­i­nate dis­cord be­tween the White House and Trea­sury. And mud­dy­ing the wa­ters even more, each fed­eral depart­ment had its own lawyers.

Even when the fed­eral gov­ern­ment moved from Philadel­phia to Wash­ing­ton in 1800, the at­tor­ney gen­eral was not re­quired to live in the city, nor given an of­fice or funds had he cho­sen to do so. Congress tried in 1830 and again in 1864 to get a full-time at­tor­ney gen­eral, but both ef­forts failed. Com­pli­ca­tions also arose when the Depart­ment of In­te­rior was cre­ated in 1849 be­cause fed­eral dis­trict at­tor­neys found a home there, al­beit an in­ap­pro­pri­ate one.

The Civil War did much to bring about the act cre­at­ing the Depart­ment of Jus­tice. For one rea­son, the Con­fed­er­acy set forth a mod­ern Depart­ment of Jus­tice headed by an at­tor­ney gen­eral who was a mem­ber of the Cab­i­net and with pow­ers suf­fi­cient to deal with crit­i­cal is­sues. Sec­ond, the ad­min­is­tra­tion of Pres­i­dent Abra­ham Lin­coln was faced with so many le­gal is­sues that sig­nif­i­cant sums of money were spent on out­side at­tor­neys that, in the view of Congress by the end of the 1860s, had not suc­ceeded in re­solv­ing le­gal prob­lems.

And by 1870, in the heat of Re­con­struc­tion of the South af­ter the Civil War, Pres­i­dent Ulysses S. Grant led ef­forts to deal with ris­ing crime, es­pe­cially in the form of the Ku Klux Klan.

The fi­nal leg­is­la­tion not only pro­vided for a full­time at­tor­ney gen­eral, but gave the of­fice author­ity over fed­eral dis­trict at­tor­neys that were moved from In­te­rior to the depart­ment. More­over, the act cre­ated a sec­ond post, solic­i­tor gen­eral, to deal with lit­i­ga­tion be­fore the Supreme Court and, in the ab­sence of the at­tor­ney gen­eral, to lead the depart­ment.

The winds of coun­ter­rev­o­lu­tion are blow­ing across Amer­ica, and they’re aimed di­rectly at Pres­i­dent Trump and the con­ser­va­tive es­tab­lish­ment. Last week’s tragic shoot­ing in Alexan­dria is the tip­ping point of a po­lit­i­cal cli­mate so charged with rhetor­i­cal out­rage that phys­i­cal vi­o­lence is now turn­ing into re­al­ity.

The same day James Hodgkin­son opened fire at a base­ball prac­tice for the an­nual con­gres­sional base­ball game — af­ter re­port­edly ask­ing whether Repub­li­cans or Democrats were prac­tic­ing — Rep. Clau­dia Ten­ney of New York re­ceived a threat­en­ing email. She usu­ally re­ceives threat­en­ing emails from peo­ple an­gry at her of­fice or at some bill or leg­is­la­tion she’s sup­ported, but this one was par­tic­u­larly dis­turb­ing since it ref­er­enced that morn­ing’s at­tack. The sub­ject line read, “One down, 216 to go … .”

Just think about it: In re­cent mem­ory, I can­not re­call a time when a U.S. pres­i­dent, or a pres­i­den­tial fam­ily, has ever been at­tacked with such vi­cious­ness. Mock­ery of the first fam­ily, the pres­i­dent and con­gres­sional lead­ers is daily fod­der for late night shows.

Our me­dia’s ob­ses­sion with Mr. Trump has em­bold­ened co­me­di­ans and play­wrights to joke about vi­o­lence against pub­lic of­fi­cials who have been legally elected to of­fice un­der our Con­sti­tu­tion. And if you’re a sup­porter of our pres­i­dent and his ad­min­is­tra­tion, you’re branded an ig­no­rant bigot or racist.

The planet’s great­est ex­per­i­ment of free­dom and democ­racy is un­der siege. And guess what? This tidal wave of de­struc­tion is com­ing from within us. As

But as with so many pieces of fed­eral laws, junk re­spon­si­bil­i­ties were heaped on the Jus­tice Depart­ment, as il­lus­trated by the fol­low­ing:

“That the du­ties en­joined upon the au­di­tor of the Post-Of­fice Depart­ment by the four­teenth sec­tion of the act en­ti­tled ‘An act to change the or­ga­ni­za­tion of the Post-Of­fice Depart­ment, and to pro­vide more ef­fec­tu­ally for the set­tle­ment of ac­counts thereof,’ passed July two, eigh­teen hun­dred and thirty-six, shall hereby be per­formed by some of­fice of the Depart­ment of Jus­tice.”

In ret­ro­spect, how­ever, the law cre­at­ing the Depart­ment of Jus­tice was re­ally a cost-cut­ter of sorts, elim­i­nat­ing about a third of the pri­vate at­tor­neys that han­dled work for the fed­eral gov­ern­ment and not re­plac­ing them with a staff that was large enough to go af­ter the bad guys, in par­tic­u­lar, the Klan. In the pre-DOJ years from 1864 to 1869, for ex­am­ple, some $800,000 was spent for pri­vate lawyers. In the years af­ter 1870, the depart­ment spent a tiny frac­tion of that sum for its own staff and was pro­hib­ited from us­ing out­side coun­sel.

Worse, the Depart­ment of Jus­tice had no per­ma­nent home. It wasn’t un­til 1935 that it got a build­ing of its own.

The prob­lem with moral rel­a­tivism — be­sides caus­ing us to be in­tol­er­ant un­der the guise of tol­er­ance — is that it triv­i­al­izes the se­ri­ous is­sues we face to­day. We end up cod­dling evil by re­fus­ing to con­front it.


Newspapers in English

Newspapers from USA

© PressReader. All rights reserved.